2013-17-Definitions-tobacco-specialty-store-tobacco-product-2

include the State definition of the term “retail tobacco specialty business”, and further that the City Council enact a definition of the terms “tobacco product” and “tobacco- related pr

TOOELE CITY CORPORATION ORDINANCE 2013-17

AN ORDINANCE OF TOOELE CITY AMENDING AND ENACTING DEFINITIONS RELATED TO TOBACCO SPECIALTY STORES AND TOBACCO PRODUCTS

WHEREAS, on January 18, 2012, the Tooele City Council approved Ordinance 2011-19, effective immediately upon passage, which enacted the following definition of the term “tobacco specialty store”, as well as imposed land use regulations upon tobacco specialty stores:

Tobacco Specialty Store – An establishment providing retail sales and

services which exclusively or primarily involve the sale of tobacco or

tobacco-related products

and,

WHEREAS, the recitals and findings of Ordinance 2011-19 are incorporated herein by this reference; and,

WHEREAS, subsequent to the enactment of Ordinance 2011-19, House Bill 95

of the 2012 General Session of the Utah Legislature (hereinafter “HB 95”) enacted U.C.A §10-8-41.6, effective May 8, 2012, containing definitions of the terms “retail tobacco specialty business” and “tobacco product”; and,

WHEREAS, U.C.A §10-8-41.6 provides that an establishment is a retail tobacco specialty business if, among other things, more than 35% of its gross annual receipts are from the sale of tobacco products, whereas T.C.C §7-1-5(177) provides that an establishment is a tobacco specialty store if it primarily sells tobacco products, the word

“primarily” being defined by the dictionary as being more than 50%; and,

WHEREAS, U.C.A §10-8-41.6 requires that an establishment falling within the definition of retail tobacco specialty business be licensed as such by the licensing municipality, and further provides that

Nothing in this section prohibits a municipality from adopting more

restrictive requirements on a tobacco specialty business than provided for

include the State definition of the term “retail tobacco specialty business”, and further that the City Council enact a definition of the terms “tobacco product” and “tobacco- related product” that mirrors the State definition of the term “tobacco product”; and,

WHEREAS, the City Administration recommends further that the component parts and ingredients of electronic cigarettes, in addition to electronic cigarettes themselves, be included in the City definition of the terms “tobacco product” and

“tobacco-related product”; and,

WHEREAS, to expedite the harmonization referenced above, and to minimize the potential for confusion and conflict, the City has published on September 19, 2013,

a Notice of Pending Ordinance, effective September 20, 2013, on the Utah Public

Notice Website, by electronic delivery through the Website to the Tooele Bulletin, and by posting at City Hall, giving notice that Tooele City has formally initiated

Transcript-proceedings to amend the Tooele City Code definitions of the terms “tobacco specialty store”, “tobacco product”, and “tobacco-related product” (see Notice of Pending Ordinance attached as Exhibit A); and,

WHEREAS, by authority of Utah Constitution Article XI Section 5, Tooele City has framed and adopted a charter “for its own government,” which Section 5 grants to municipalities like Tooele City

the authority to exercise all powers relating to municipal affairs, and to

adopt and enforce within its limits, local police, sanitary and similar

regulations not in conflict with the general law, and no enumeration of

powers in this constitution or any law shall be deemed to limit or restrict

the general grant of authority hereby conferred . 1

WHEREAS, the Utah Code (U.C.A §10-1-107) grants expansive, not limited, powers to municipalities:

The provisions of this act [the Utah Municipal Code] or any other act

shall be considered as an alternative or additional power and not as a

limitation on any other power granted to or possessed by municipalities

WHEREAS, the Utah Code provides that municipal governing bodies (e.g., the Tooele City Council) “shall exercise its legislative powers through ordinances” (U.C.A

§10-3-701), which legislative powers enable the City Council to

pass any ordinance to regulate, require, prohibit, govern, control or

supervise any activity, business, conduct or condition authorized by this

act or any other provision of law

WHEREAS, the City Council finds that the present Ordinance is in the best

interest of the public health, safety, and welfare (reference U.C.A §10-8-41.6(2)); and,

1 At the present time, Tooele is the only chartered city in the State of Utah

WHEREAS, Utah courts have held that the exercise of legislative powers in the enactment of ordinances by municipal legislative bodies furthering the health, safety, or welfare of the municipality is governed by the reasonably debatable standard; a decision that is reasonably debatable will not be held to be arbitrary or capricious; a legislative decision will be upheld if it is reasonably debatable that the decision, and the

evidence supporting it, is in the interest of the general welfare (see: Petersen v Riverton City, 210 UT 58, 243 P.3d 1261 (Utah 2010); Bradley v Payson City, 203 UT

216, 70 P.3d 47 (Utah 2003); Marshall v Salt Lake City, 105 UT 111, 141 P.2d 704

(Utah 1943)); and,

WHEREAS, the City Administration, through the City Recorder’s Office, will prepare administratively policies for the issuance of business licenses and for the verification of gross receipts as relevant to this Ordinance; and,

WHEREAS, this Ordinance, together with the Notice of Pending Ordinance, were discussed by the City Council during its public work session of October 2, 2013 (see City Council agenda and minutes attached as Exhibit B); and,

WHEREAS, the Planning Commission convened a public hearing, as required by U.C.A §10-9a-205 for land use ordinances and by T.C.C §7-1A-6 for revisions to the City zoning ordinance, on October 23, 2013, and voted to recommend approval of this ordinance to the City Council (see the Planning Commission minutes attached as Exhibit C); and,

WHEREAS, the City Council convened a public hearing, as required by T.C.C

§7-1A-6 for revisions to the City zoning ordinance, on November 6, 2012 (see the City Council minutes attached as Exhibit E):

NOW, THEREFORE, BE IT ORDAINED BY THE TOOELE CITY COUNCIL that:

1 the Tooele City Code definitions of the terms “tobacco specialty store”, “tobacco product”, and “tobacco-related product” are hereby amended as shown in Exhibit E; and,

2 this Ordinance shall be retroactive to 12:01 a.m on September 20, 2013, pursuant to the published Notice of Pending Ordinance and the pending ordinance rule codified in U.C.A §10-9a-509; and,

3 the City Record’s Office is hereby directed to develop an administrative procedure for the reporting of total annual gross receipts from the sale of tobacco products by tobacco product sellers in Tooele City

This Ordinance is necessary for the immediate preservation of the peace, health, safety, or welfare of Tooele City

IN WITNESS WHEREOF, this Ordinance is passed by the Tooele City Council this day of _, 2014 5th February

Exhibit A

Notice of Pending Ordinance

September 20, 2013

Exhibit B

City Council Work Session Agenda

and Minutes (October 2, 2013)

PUBLIC NOTICE Notice is hereby given that the Tooele City Council & Tooele City Redevelopment Agency of Tooele City, Utah, will meet in a Work Session on Wednesday, October 2, 2013 at the hour of 5:00 P.M The meeting will be held at the Tooele City Hall Large Conference Room located at 90 North Main Street, Tooele, Utah

Presented by Roger Baker

- Rocky Mountain Care Subdivision to Create One 4.55 Acre Lot Located at 85 East 2000 North

Presented by Jim Bolser

- Ordinance 2012-15 Amending the Tooele City Zoning Map for property Located Near

2000 North St and Berra Blvd from RR-5 to GC Presented by Jim Bolser

- Ordinance 2013-13 Amending the Tooele City General Plan Land Use Map for Property Located Near 200 South 1200 West from Light Industrial Land Uses to General Commercial/Research and Development Land Uses

Presented by Jim Bolser

- Ordinance 2013-18 Amending the Tooele City Zoning Map for Property Located Near 200 South 1200 West from LI to RD

Presented by Jim Bolser

- Ordinance 2013-19 Amending the Tooele City Zoning Map for Property Located Near 145 East 1000 North from RR-1 to LI

Presented by Jim Bolser

- Cyrus Land Investment Rezone Request for 12 Acres Located on the Northeast Corner of Second Ave and Seventh St (Tooele Army Depot Street Names) Bordering the National Guard Complex from Open Space to Light Industrial

Presented by Jim Bolser

- Conditional Use Annual Inspections

Presented by Jim Bolser

4 Motion to Close Meeting to Discuss:

Tooele City Recorder/RDA Secretary

Pursuant to the Americans with Disabilities Act, Individuals Needing Special Accommodations Should Notify Michelle Y Pitt, Tooele City Recorder, at 843-2110 prior t o the meeting

P a g e | 1 Tooele City Council October 2, 2013

Tooele City Council and Tooele City Redevelopment Agency Work Session Meeting Minutes

Date: Wednesday, October 2, 2013

Time: 5:00 p.m

Place: Tooele City Hall, Large Conference Room

90 North Main St Tooele, UT

City Council Members Present:

Dave McCall, Chair

Steve Pruden

Scott Wardle

Brad Pratt

Debbie Winn

City Employees Present:

Mayor Patrick Dunlavy

Roger Baker, City Attorney

Glen Caldwell, Finance Director

Jim Bolser, Community Development and Public Works Director

Paul Hansen, City Engineer

Michelle Pitt, City Recorder

Rachelle Custer, City Planner

Minutes prepared by Michelle Pitt

Chairman McCall called the meeting to order at 5:05 p.m

2 Roll Call

Dave McCall, Present

Scott Wardle, Present

Steve Pruden, Present

Brad Pratt, Present

Debbie Winn, Present

3 Discussion:

- Draft Ordinance 2013-17 An Ordinance of Tooele City Amending and Enacting

Definitions Related to Tobacco Specialty Stores and Tobacco Products

Presented by Roger Baker

P a g e | 2 Tooele City Council October 2, 2013

In 2012 the City Council enacted a regulation for tobacco specialty stores Six months later a state statute was enacted providing that if more than 35% of stores’ gross annual receipts were from the sale of tobacco products, it would be designated as a tobacco specialty store Roger recommended adopting this ordinance which would comply with state statute The city can adopt a more stringent or strict ordinance, but not a more liberal or broader ordinance This ordinance includes tobacco products and tobacco-related products, including e-cigarettes and the component parts of e-cigarettes, such as, nicotine oils and electronic cigarette parts This

ordinance will go before the Planning Commission for review and then come back before the City Council for consideration on November 6th The city has a local situation where a tobacco specialty store was closed because it conducted illegal business, i.e., selling illegal drugs This store reopened as a convenience store, but seems to be operating as a tobacco specialty store

- Rocky Mountain Care Subdivision to Create One 4.55 Acre Lot Located at 85

East 2000 North

- Ordinance 2012-15 Amending the Tooele City Zoning Map for Property

Located Near 2000 North St and Berra Blvd from RR-5 to GC

Presented by Jim Bolser

Since these two items regard the same thing, Jim presented them together In January of this year, there were a few issues that the developers needed to take care of, namely the dedication of the existing roadway into the west side of the hospital Those issues have been addressed and this development is ready to move forward A public hearing has already taken place This ordinance will complete this item, which was brought before the Council about 10 months ago

- Ordinance 2013-13 Amending the Tooele City General Plan Land Use Map for

Property Located Near 200 South 1200 West from Light Industrial Land Uses to General Commercial/Research and Development Land Uses

- Ordinance 2013-18 Amending the Tooele City Zoning Map for Property Located

Near 200 South 1200 West from LI to RD

Presented by Jim Bolser

Since these two items regard the same thing, Jim presented them together Jim passed out maps that depicted the area discussed Things are underway for the educational corridor associated with the USU expansion The city felt it was time to proceed with this rezone and reassignment

on the General Plan Land Use Map This ordinance formally zones the publicly owned land in this area as research and development

- Ordinance 2013-19 Amending the Tooele City Zoning Map for Property Located

Near 145 East 1000 North from RR-1 to LI

Presented by Jim Bolser

Exhibit C

Planning Commission Minutes

(October 23, 2013)

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Community Development Department

TOOELE CITY PLANNING COMMISSION MINUTES

October 23, 2013

Place: Tooele City Hall Council Chambers

90 North Main Street, Tooele Utah

Commission Members Present:

Matt Robinson, Chair

City Employees Present:

Rachelle Custer, City Planner

Roger Baker, City Attorney

Jim Bolser, Public Works and Community Development Director

Paul Hansen, City Engineer

Councilwoman Winn

Councilman Pratt

Minutes prepared by Elisa Jenkins

Chairman Robinson called the meeting to order at 7:00 p.m

1 Pledge of Allegiance

The Pledge of Allegiance was led by Commissioner Smart

2 Roll Call

Matt Robinson, Present

John Curwen, Excused

Phil Montano, Excused

Chris Sloan, Present

Steve Dale, Excused

Melanie Hammer, Present

Tom Poyner, Present

Ray Smart, Present

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Community Development Department

Shauna Bevan, Present

3 Public Hearing and Motion on a conditional use permit for increasing height and

replacing poles on an existing 138 kV transmission line along the southeast edge of

Tooele City

Presented by Ms Custer

Ms Custer explained that Rocky Mountain Power has requested a conditional use permit to

allow for a conductor upgrade on an existing line along the southeast edge of Tooele City Some

of the poles will be raised, some of them will be fitted with x-braces, some will need bayonets

and some will be replaced The conductor will be replaced along the entire line There is an

existing easement This line was constructed in 1963 and there is not a conditional use permit on

file from the initial construction The City has asked Rocky Mountain Power for a conditional

use permit to be in place because of the increase in height, and replacement of some of the poles

She stated that letters were sent out to the list of residents provided by Rocky Mountain Power to

those being affected by this project and informing them of this meeting and Rocky Mountain

Power’s desire to upgrade this line

Mickey Beaver, with Rocky Mountain Power addressed the Commission Mr Beaver is the

Customer Community Manger for the Tooele Area and the Economic Development Manager for

three states which include Wyoming, Utah and Idaho He stated that this power line which

consists of approximately 100 structures and is approximately 13 miles long has been in place

since 1963 He said that in the last few years they have experienced an unacceptable number of

outages which have affected residents in this area The conductor size will go up and will be

stronger to enhance the power line to effectively carry more load as they go forward into the

future This upgrade is a reliability issue and a safety issue to ensure better consistency of

delivery of electricity and serve the growing needs of Tooele Valley along this corridor Because

the new conductor is a little heavier and it has a tendency to hang lower, it will require Rocky

Mountain Power to install bayonets to allow the proper clearance between the ground and the

conductor and to comply with clearance and safety codes They are raising the height of a few

poles to create clearances They are also installing x-frame bracing on some of the structures

which will stabilize the structures for safety purposes and ensure continued reliability The

easement has been in possession of Rocky Mountain Power for a long time and this upgrade is

intended for reliability, growth and development He asked if the Commission had any

questions

Commissioner Sloan noted that two outages will be required to complete the project and asked

how it will affect the residents

Mr Beaver referred this question to Scott Burton, Transmission Engineer with Rocky Mountain

Power

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Community Development Department

Mr Burton stated that the outages will not affect Tooele City; they will be between the Pine

Canyon Sub and the Jensen Sub There will not be any outages in Tooele City during

construction

Mr Beaver said that he appreciates the opportunity to be at the meeting and thanked Ms Custer

for helping them through the conditional use permit process

Chairman Robinson stated that this is a public hearing if anyone would like to come forward and

address the Commission

Howard Yerke, 197 Val Vista addressed the Commission Mr Yerke asked if Rocky Mountain

Power plans on changing the KVA rating on this line

Mr Beaver said no

Mr Yerke noted that since the lines will be hanging down he asked if they have they been

engineered to allow proper clearance from the existing houses for safety

Mr Beaver said that issue has been taken into consideration and that is why some poles are being

raised

Paul Johnson, of Tooele addressed the Commission He indicated that he owns property where

this power line goes through He asked what is being done with poles 89 and 90 which will affect

his property

Mr Beaver said that on poles 89 and 90 Rocky Mountain Power will be installing bayonets to

raise the conductor to meet acceptable clearance standards

Myron Bateman, 630 Kingston, addressed the Commission Mr Bateman indicated that he has

two pieces of property close to these lines which are near pole 91 and 93 He stated that these

lines buzz especially in the summer and asked with more electricity running through them if they

will be louder He is also concerned about how the poles will look when they add height to them

and if it will deteriorate his view

Mr Beaver said on structure 91 they are installing an x- brace, and on structure 93 they are

removing the pole and installing a new structure He said that a lot of the time the noise that

comes off power lines is due to the vibration of the hardware Rocky Mountain Power will be

tightening all of the hardware on the entire line as they go through this construction which should

help reduce the noise and they are raising some of the conductors which should also help

Mr Bateman asked if the number of lines will stay the same

Mr Beaver said yes

Chairman Robinson closed the public hearing at 7:14 p.m

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Community Development Department

Commissioner Sloan moved to approve the conditional use permit request by Rocky

Mountain Power for the Tooele –Jensen switch rack 138kV transmission line conductor

replacement, application number 2130526, based on the findings listed in the staff report

dated October 23, 2013, with the following conditions:

1 That all requirements of the Tooele City Engineering and Public Works

Divisions are satisfied throughout the development of the site and the

construction of all structures on the site, including permitting

2 That all requirements of the Tooele City Building Division are satisfied

throughout the development of the site and the construction of all structures on

the site, including permitting

Commissioner Poyner seconded the motion The vote was as follows: Commissioner Sloan,

“Aye”, Commissioner Bevan, “Aye”, Commissioner Poyner, “Aye”, Commissioner Smart,

“Aye”, Commissioner Hammer, “Aye”, and Chairman Robinson, “Aye”

4 Public Hearing and Motion on a conditional use permit for an automobile salvage

yard to be located at 150 S Feldspar by Green Box Recycling, LLC

Presented by Rachelle Custer

Ms Custer said that Green Box recycling is currently located at Ninigret Industrial Depot and

they do recycling of various items They are requesting a conditional use permit to expand into

an automobile salvage yard at 150 South Feldspar; they will be able to recycle all of the products

including the fluid coming out of the automobiles They will be selling some of the vehicles they

fix, but the conditional use permit is only needed for the auto salvage part of the business They

will have to abide by all EPA standards as far as the fluids are concerned, Tooele City does not

regulate that part of the business They will also need to have an automobile dealer’s license for

any auto sales Tooele City Code does require a screened fencing with berming be installed

around the salvage yard

Commissioner Bevan said the drawing does not a show fence across the back where the hill is

She asked if it needs to be entirely fenced across the back

Ms Custer said the way the code reads it says “screened fencing, wall or berm” If the berm is

as tall as any of the material stored on the other side, the berm is sufficient

Commissioner Sloan noted that the code reads “The salvage yard shall be fenced with a

view-obscuring fence, hedge, or landscaped berm at a height at least equal to the height of the

materials stored within …” which he said could be a varying height

Ms Custer said that it cannot be higher than 8 ft

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Community Development Department

Commissioner Sloan said that there is not a minimum He asked if they should stipulate a certain

height to take the guess work out

Mr Baker said that is within the Commission’s discretion to address as a mitigated condition

Commissioner Poyner said that he understands that the applicant will have to get a permit from

the state to sell vehicles and there is usually a limit on how many vehicles they can sell per year

He asked if there is a limit on how many vehicles they are allowed to sell and what that limit is

Ms Custer said that would be regulated by their dealer’s license, Tooele City would not regulate

that The Utah State Tax Commission will follow the vehicles that they sell

Commissioner Hammer asked if the display area is inside the fence (the scallop area on the

drawing)

Ms Custer said that the scallop area is intended for the fence to go around the display area The

only thing that needs to be screened is the salvage area

Commissioner Hammer asked if the scallop area is a slatted privacy fence

Ms Custer said that it is an existing fence

The applicant said that it is an existing 8 ft fence

Chairman Robinson stated that this is a public hearing if anyone would like to come forward and

address this issue

Peter Carroon, with Ninigret Industrial Depot addressed the Commission He said that Green

Box have been great owners within the depot They had some concerns with fencing,

environmental waste, and shredding (which they won’t be doing) He has spoken with the

applicant about these issues and wanted to make sure that some of these concerns would be

handled and he is satisfied He appreciates their efforts in expanding and the depot supports their

efforts

Chairman Robinson closed the public hearing at 7:21 p.m

Commissioner Sloan asked the applicant if a minimum fence height was required if it would

cause any concern on their end

The applicant said that the fence is already in place

Commissioner Bevan moved to approve the conditional use permit request by Gary

Applegate for an automobile salvage yard on approximately 1.9 acres at 150 S Feldspar

with the following conditions from staff:

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Community Development Department

1 That all requirements of the Tooele City Engineering and Public Works

Divisions are satisfied throughout the development of the site and the

construction of all structures on the site, including permitting

2 That all requirements of the Tooele City Building Division are satisfied

throughout the development of the site and the construction of all structures on

the site, including permitting

3 That all requirements of the State of Utah be followed for vehicle dismantling

and fluid containment

Commissioner Smart seconded the motion

Commissioner Sloan made an amendment to the motion to include a minimum of a 6 ft

fence or a maximum of an 8 ft fence be installed around the salvage yard

Commissioner Bevan and Commissioner Smart agreed to the amendment

The vote was as follows: Commissioner Sloan, “Aye”, Commissioner Bevan, “Aye”,

Commissioner Poyner, “Aye”, Commissioner Smart, “Aye”, Commissioner Hammer, “Aye”,

and Chairman Robinson, “Aye”

5 Public Hearing and Recommendation Ordinance 2013-19 Amending Tooele City

Zoning map for property located near 145 East 1000 North

Presented by Rachelle Custer

Ms Custer explained that this property is currently owned by Tooele City for a future fire

station In 1997 there was a re-zone done on a portion of the property from LI to RR-1 They

are requesting that the zoning district be changed back to LI The owner that requested the RR-1

zone was intending to put four, one acre residential lots on this property, which they are no

longer going to do and now Tooele City has acquired the property The majority of property to

the north is zoned LI She said the LI is more conducive to the use for this lot They are asking

for a favorable recommendation to City Council to change this lot from RR-1 to LI

Chairman Robinson stated that this is a public hearing if anyone would like to come forward and

address this issue No one came forward

Chairman Robinson closed the public hearing at 7:25 p.m

Chairman Robinson moved to make a positive recommendation to the City Council on

Ordinance 2013-19 for a rezone request by Tooele City changing the zoning district of

approximately 3 acres located near 145 East 1000 North from RR-1 Rural Residential 1

acre lots to LI Light Industrial, based on the finding listed in the Staff Report dated

October 23, 2013 Commissioner Hammer seconded the motion The vote was as follows:

Commissioner Sloan, “Aye”, Commissioner Bevan, “Aye”, Commissioner Poyner, “Aye”,

Commissioner Smart, “Aye”, Commissioner Hammer, “Aye”, and Chairman Robinson, “Aye”

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Community Development Department

6 Public Hearing and Recommendation Ordinance 2013-13 Amending Tooele City

General Plan Land Use map for property located near 200 South 1200 West

Presented by Rachelle Custer

Ms Custer stated that this is currently the Tooele City Commercial Park as well as property

owned by Utah State University The first request is for a general plan amendment to change the

land use to a GC land use which incorporates the RD zoning district The next agenda item

requests a re-zone on the property The RD zoning district is more compatible with the

education corridor which is being developed in this area by the Utah State University Campus

Currently the General Plan Land use is LI, which is not as conducive to the educational corridor

as the research and development zone In order to re-zone to the RD zone they need to change

the General Plan Land Use to General Commercial Utah State University has been notified of

the desire to change the property

Chairman Robinson stated that this is a public hearing if anyone would like to come forward and

address this issue No one came forward

Chairman Robinson closed the public hearing at 7:28 p.m

Commissioner Poyner moved to make a positive recommendation to the City Council on

Ordinance 2013-13 for the general plan map amendment request by Tooele City changing

the land use designation of approximately 270 acres located near 200 South and 1200 West

from LI to GC based on the finding listed in the staff report dated October 23, 2013

Commissioner Bevan seconded the motion The vote was as follows: Commissioner Sloan, “Aye”,

Commissioner Bevan, “Aye”, Commissioner Poyner, “Aye”, Commissioner Smart, “Aye”,

Commissioner Hammer, “Aye”, and Chairman Robinson, “Aye”

7 Public Hearing and Recommendation Ordinance 2013-18 Amending Tooele City

Zoning map for property located near 200 South 1200 West

Ms Custer said that for the actual re-zone they have omitted all the property not owned by

Tooele City or Utah State University The general plan was for the entire area The re-zone

from LI to RD is only for property owned by Tooele City and Utah State University Utah State

University has been notified

Commissioner Sloan asked if the property owners surrounding the area have been notified

Ms Custer said only by the public notice for the ordinance, not individually

Chairman Robinson stated that this is a public hearing if anyone would like to come forward and

address this issue No one came forward